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Halstead v. Ryan

United States District Court, Ninth Circuit

July 26, 2013

James Randall Halstead, Petitioner,
v.
Charles L. Ryan, Respondent.

REPORT AND RECOMMENDATION

LESLIE A. BOWMAN, Magistrate Judge.

Pending before the court is a petition for writ of habeas corpus filed on April 19, 2012, by James Randall Halstead, an inmate confined in the Arizona State Prison Complex in Florence, Arizona. (Doc. 1) Halstead claims (1) the testimony of the state's medical expert, Dr. Debra Reisen, violated the Confrontation Clause, (2) the testimony of the counselors, Diane Kazinski and Elizabeth Banks, was hearsay and violated the Due Process Clause, (3) trial counsel was ineffective for failing to properly object to Reisen's testimony at trial, (4) the prosecutor committed misconduct during the questioning of the state's expert, Wendy Dutton, and (5) trial counsel was ineffective by failing to call certain witnesses. (Doc. 1, pp. 6, 10, 13, 16, 19)

Pursuant to the Rules of Practice of this court, this matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).

The Magistrate Judge recommends the District Court, after its independent review of the record, enter an order dismissing the petition. It is time-barred.

Summary of the Case

Halstead was convicted after a jury trial of "three counts of sexual conduct with a minor under the age of twelve and one count of furnishing obscene or harmful items to a minor." (Doc. 13-1, p. 3) On June 2, 2008, the trial court gave Halstead a sentence of imprisonment totaling three consecutive life terms. (Doc. 13-1, pp. 20-24)

On direct appeal, Rossum argued (1) the testimony of counselors, Kazinski and Banks, was improper vouching and hearsay and (2) the testimony of Dr. Debra Reisen violated the Confrontation Clause. (Doc. 13-1, pp. 2-11) Nevertheless, the Arizona Court of Appeals affirmed Halstead's convictions and sentences on June 1, 2009. (Doc. 13-1, p. 2) The Arizona Supreme Court denied Halstead's petition for review on December 1, 2009. (Doc. 13, p. 29)

On January 28, 2010, Halstead filed notice of post-conviction relief. (Doc. 13, p. 3) He argued (A) trial counsel was ineffective for (1) failing to object to certain testimony given by the state's expert, Wendy Dutton, (2) failing to object to testimony about uncharged acts from counselor Beth Banks, (3) failing to object to Banks' improper vouching, (4) failing to object to testimony given by Rojene Drake, and (4) failing to object to testimony by Dr. Debra Reisen and (B) the prosecutor committed misconduct by eliciting improper testimony from Dutton, Banks, and Drake. (Doc. 13-5, pp. 12, 17, 18, 23, 25)

The trial court denied the petition on August 10, 2006. (Doc. 13-5, pp. 29-31) The Arizona Court of Appeals denied relief on March 8, 2011. (Doc. 13-6, p. 27) Halstead did not seek further review. (Doc. 13, p. 3)

On April 19, 2012, Halstead filed the pending petition for writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. (Doc. 1) He argues (1) the testimony of the state's medical expert, Dr. Debra Reisen, violated the Confrontation Clause, (2) the testimony of the counselors, Diane Kazinski and Elizabeth Banks, was hearsay and violated the Due Process Clause, (3) trial counsel was ineffective for failing to properly object to Reisen's testimony at trial, (4) the prosecutor committed misconduct during the questioning of the state's expert, Wendy Dutton, and (5) trial counsel was ineffective by failing to call certain witnesses. (Doc. 1, pp. 6, 10, 13, 16, 19)

On August 27, 2012, the respondent filed an answer arguing among other things that the petition is time-barred. (Doc. 13) Halstead did not file a reply.

The respondents are correct. The petition ...


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